ORG policy update/2015-w47
This is ORG's Policy Update for the week beginning 16/11/2015
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Discussion on fast-tracking IPB
David Cameron has suggested that the timetable for pre-legislative and parliamentary scrutiny of the draft Investigatory Powers Bill may need to be revised after the terrorist attacks in Paris last week. Home Secretary Theresa May has responded to questions from several MPs (see below) about the timeframe for scrutiny following the Prime Minister's comments, stating that the timetable will be reviewed at every stage but that it is important the Bill gets sufficient scrutiny in Parliament.
Parliamentary Debates and Questions
Questions on the police and security services
Conservative MP, Christopher Pincher asked whether the government were ensuring that the powers used by the police and security services were defined in a legal framework, and whether the new Investigatory Powers Commissioner would have greater resources and technical expertise. Home Secretary Theresa May responded that the powers would be set out in the Investigatory Powers Bill, the draft of which has been published for pre-legislative scrutiny, and that the Investigatory Powers Commissioner would have technical expertise, as well as a budget to allow him or her to obtain more technical support if necessary.
Huw Merriman MP asked whether the police powers in the draft Bill would be transparent and subject to oversight. He also explained that he had received letters from constituents calling for authorisation of warrants by judges rather than the Secretary of State, but that he felt that the decision to issue warrants by a Minister was more accountable to the public through parliamentary scrutiny. The Home Secretary responded that the draft Investigatory Powers Bill has been published for pre-legislative scrutiny and that it contains a "double lock" mechanism to include both Secretary of State authorisation of warrants and judicial oversight of these decisions.
Tom Brake, Shadow LD Spokesperson (Foreign Affairs), Liberal Democrat Chief Whip and Shadow LD Leader of the House of Commons, asked for assurance that the Investigatory Powers Bill would not be fast-tracked in the wake of the Paris terrorist attacks. Theresa May confirmed that it was important for the Bill to get proper scrutiny.
Chi Onwurah, Shadow Minister (Business, Innovation and Skills) and Shadow Minister (Culture, Media and Sport), asked how the draft Bill ensured that it would be able to cope with future technological developments. Theresa May responded that the draft Bill attempts to find a balance between being too wide or too narrow in its scope.
Julian Lewis, Chair of the Defence Committee, asked whether abuse of the powers granted in the draft Bill would be a criminal offence. The Home Secretary confirmed this would be the case.
Question on double lock mechanism in draft IPB
Jeff Smith, Opposition Whip, asked the Home Secretary whether the double lock system for authorising interception warrants means that judges would review the process undertaken by the Secretary of State or whether they would review the evidence itself.
Theresa May responded that he should read an article written by Lord Pannick in the Times.
Question on VPN providers and draft IPB
Margaret Ferrier, Shadow SNP Spokesperson (Scotland office), asked why another bill relating to investigatory powers was being pushed through, and whether commercial VPN providers would be classed as telecommunications operators under the draft Investigatory Powers Bill.
The Home Secretary responded that the SNP Front-bench spokesperson had previously given support to a new consolidated bill. She did not respond to the VPN providers question.
Questions on draft IPB in response to Paris terrorist attacks
The Home Secretary made a statement in the Commons on the terrorist attacks that took place in Paris last week. In her speech, she mentioned the draft Investigatory Powers Bill, stating that it required proper parliamentary scrutiny.
Several members of the House asked questions about the draft Bill. A common question related to the timeline of the Bill following comments from the Prime Minister that this may be reviewed. Shadow Home Secretary, Andy Burnham, Joanna Cherry MP and Nusrat Ghani MP all asked whether the timeline of the Bill was going to change. The Home Secretary responded that the timeline would be reviewed at every stage but that it was right to give the Bill proper scrutiny in parliament.
Conservative MP, Owen Paterson expressed his view that the issuing of warrants should be handled by the Secretary of State alone, rather than involving the judiciary, as the former is democratically elected and responsible to the House. He also raised concerns about the speed a warrant could be issued under a system involving the judiciary. Theresa May responded that there were provisions in the draft Bill to deal with urgent and emergency cases, and that the double lock mechanism balances the democratic accountability of the Secretary of State with the independence of the judiciary.
Ranil Jayawardena MP asked whether the Home Secretary agreed that "those who seek to defend our liberties—enjoyed by Christians or Muslims, those of faith or of none—by depriving the security services of the powers we need are actually putting those liberties at risk and should consider their position?" Theresa May responded that security and liberty were not a zero-sum game and that security was necessary to enjoy liberty.
Matt Warman MP asked if the Home Secretary had any messages to the people serving on the Investigatory Powers Bill joint scrutiny Committee. Theresa May responded that this was a significant bill and it was crucial that it receives the scrutiny requires.
Questions on the Wilson Doctrine
Caroline Lucas MP and Graham Allen MP asked whether the Wilson Doctrine, a convention that gave additional safeguards to MPs' communications from interception, has been consistently applied to their communications and whether they have been subject to surveillance.
Caroline Lucas additionally asked what information the Secretary of State for the Home Department holds on the surveillance of MPs' communications.
Greg Mulholland, Liberal Democrat Campaigns Chair, asked what measures the government was taking to ensure communications between MPs and whistleblowers would be protected from interception.
Minister of State for the Home Office, John Hayes, gave the same response to all questions, citing the Government's position on the Wilson Doctrine as set out by the Prime Minister earlier this month. He stated that there was never an "absolute barrier" to interception of MPs' communications, that the Prime Minister would be consulted if MPs' were to be subject to targeted communications interception, electronic surveillance or equipment interference. He reiterated the Government policy to neither confirm nor deny any specific activity by the intelligence and security services.
EDPS publishes Opinion on Big Data
The European Data Protection Supervisor has published an Opinion on "Meeting the challenges of big data". The EDPS's role includes advising EU institutions and bodies on data protection policy issues relating to new legislative proposals; the Opinion, while not binding, acts as an instrument to achieve this. The Opinion explores how to balance the potential social benefits of big data and its analysis with fundamental rights and freedoms of citizens, and how to apply data protection safeguards.
The Opinion identifies several potential risks and challenges that big data analytics poses, including a lack of transparency and informational imbalance leading to the risk of the core principles of data protection being compromised. It also outlines the potential for social harm through automated decisions and predictive analysis which can lead to "discrimination, reenforcement of existing stereotypes, and social and cultural segregation and exclusion". Finally, it highlights the risk of online tracking creating a chilling effect on free speech and creativity that encourages conformist behaviour.
The EDPS details four essential elements to ensure that there is "responsible and sustainable" development of big data: more transparency by organisations on how they process data, a higher degree of control over data for users, design of user-friendly data protection into products and services, more accountability of organisations.
Update on EU PNR negotiations
The Council of the European Union has issued a note on the ongoing EU Passenger Name Record (PNR) negotiations. PNRs are used for operational purposes by the travel industry to manage reservations and therefore hold sensitive personal data. PNR schemes operate by profiling and categorising passengers before travel in order to assess risk. The EU PNR scheme plans to collect data for all passengers travelling by air through EU member states, however negotiations have been problematic: discussions started in 2007 and stalled, but the issue resurfaced in early 2015.
The Council note describes the discussions in the latest round of negotiations so far and sets out compromises suggested by the Presidency. These include widening the list of offences defined as "serious crimes" beyond those listed in Annex II of the General Approach of the Council, and removing the requirement for crimes to be "transnational". No compromise has been suggested on the issue of including intra-EU flights. The Presidency has indicated that the initial retention period of PNR data could be 12 months before it is masked out. The issue of whether the scheme should include non-carrier economic operators, such as travel agents, remains unclear.
The PNR scheme has been criticised for compromising the fundamental rights of citizens as it will have implications for data protection and privacy.
FRA report on surveillance
The EU Agency for Fundamental Rights (FRA) has published a report on "Surveillance by intelligence agencies: fundamental rights safeguards and remedies in the EU". The report follows the European Parliament's request for research in this area. It analyses the legal frameworks of surveillance by intelligence agencies in Member States, focusing on mass surveillance, oversight mechanisms and remedies for citizens who wish to challenge surveillance activities.
Launch of onlinecensorship.org
Onlinecensorship.org, a project by EFF and Vizualizing Impact, launched recently to collect data on content that is removed from online platforms such as Facebook and Instagram, with the aim of encouraging transparency and accountability about the regulation of speech from these companies. Platform users can submit reports on removed content through the project website.
ORG Media coverage
See ORG Press Coverage for full details.
- 2015-11-16 – Wired - Cameron might fast-track snooping bill after Paris attacks
- Author: Matt Burgess
- Summary: ORG quoted on why the draft Investigatory Powers Bill needs proper scrutiny and should not be fast-tracked.
- 2015-11-16 – The Verge - After Paris attacks, UK politicians suggest fast-tracking new surveillance laws
- Author: James Vincent
- Summary: Jim Killock quoted on why the draft Investigatory Powers Bill needs proper scrutiny and should not be fast-tracked.